DOJ Hid Exculpatory Evidence in Hundreds of Cases

As Radley Balko says about himself, I probably should have reached the point where I’m immune to outrage over stories like this, but I haven’t. The DOJ has had evidence for a decade and a half that could prove hundreds of people innocent, but they haven’t bothered informing those people or their attorneys.

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.

Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.

As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.

In one Texas case, Benjamin Herbert Boyle was executed in 1997, more than a year after the Justice Department began its review. Boyle would not have been eligible for the death penalty without the FBI’s flawed work, according to a prosecutor’s memo.

The case of a Maryland man serving a life sentence for a 1981 double killing is another in which federal and local law enforcement officials knew of forensic problems but never told the defendant. Attorneys for the man, John Norman Huffington, say they learned of potentially exculpatory Justice Department findings from The Washington Post. They are seeking a new trial.

Justice Department officials said that they met their legal and constitutional obligations when they learned of specific errors, that they alerted prosecutors and were not required to inform defendants directly.

I mean, think about that. Taxpayer-paid employees of the Justice Department had direct and exclusive knowledge that there may be hundreds of innocent people in prison, they knew that flawed forensics in these cases needed to be reviewed, and their justification for not doing more as these people continued to rot in prison was, Hey, we did the bare minimum required of us by law.

The immediately obvious problem here is that the ethical requirements need to be strengthened. If the task force charged with investigating possible wrongful convictions is only required to report what it finds to the prosecutor offices that won those convictions—and who obviously have a strong incentive to keep the new information under wraps—what the hell was the point of forming the task force in the first place? And why keep the task force findings from the public?

But even beyond the problematic ethical requirements, I’m having a hard time fathoming how no one on this task force felt morally compelled to go beyond those requirements—to, you know, actually reach out defense attorneys, or attempt to actually reach the convicts or their families. How in the world can you possess this sort of information, then still sleep at night, year after year, knowing that (a) the information obviously isn’t reaching the people who have an incentive to actually put it to use, (b) you’re one of the few people who could make that happen, and (c) because the information was only available to select group of people, if you or one of your colleagues doesn’t act, no one else will?

It should be clear by now that almost no one involved in law enforcement or prosecution really cares about actual guilt or innocence. And the reason for that is because all of the incentives cut the other way. Police officers get promotions and police departments get federal grants for making more arrests; prosecutors and judges get reelected by constantly claiming to be tough on crime and crowing about their conviction rate. They are acting purely out of self-interest, not principle.

And why aren’t people in prison because of this? Besides the victims, of course.

Abby Normal

They are acting purely out of self-interest, not principle.

Being part of the justice system, they also have significantly reduced chances of finding themselves on the accused side of the courtroom and reduce chances of being railroaded if they do. If they faced the same chance of being wrongfully convicted as the rest of us, their self-interest might align more toward justice. I have no ideas for how to counterbalance that, but it seems like any solution to our justice system breakdown must.

eric

Abby:

Being part of the justice system, they also have significantly reduced chances of finding themselves on the accused side of the courtroom and reduce chances of being railroaded if they do. If they faced the same chance of being wrongfully convicted as the rest of us, their self-interest might align more toward justice.

To be fair, in my experience forensic scientists generally support the idea of separating the labs from prosecutors offices, and support the idea of improved test protocols. It ain’t the labbies that built the system this way.

Separating them from local LE is a bit harder (they work together at a scene). But call that the 10% problem; IMO we could still achieve a 90% solution with stronger protocols and stronger administrative/budget separation from DA offices.

I have no ideas for how to counterbalance that, but it seems like any solution to our justice system breakdown must

Administratively and budget-wise, separate forensics from prosecution (where it isn’t – many times, it already is). Use performance metrics based on analysis quality rather than conviction rate to set lab funding and give raises/promotions to lab staff. Employ more blinding techniques – for example, instead of asking an examiner ‘does hair A match hair B?’ ask ‘of hairs A-G, which ones match, if any?’. Make examination report results open to both attorneys, where it isn’t done already. Do sensitivity and confidence studies of most of the forensic techniques, so that everyone knows the typical error rates.

Many of these things are done, piecemeal, in different places across the US. But there’s no real federal push to improve the system as a whole. What’s interesting is that reform is supported not only by scientists and the NAS, but also by the ABA. And probably by the various forensics organizations, though I haven’t looked up their positions on the subject so that’s just a guess.

Aaron

I think there is just a lack of incentive to solve these problems. Its easier, and often beneficial, to lock people up. There is not a great deal of support for unlocking them later – too much political liability. How do we go about changing that incentive?

Abby Normal

Eric, I appreciate your comments (both here and in general). In this particular case I was referring more to prosecutors and police protecting their own and, to a lesser degree, each other. It was the Justice Department that withheld the review results and the people who made that decision face almost no risk of finding themselves on trial for crimes they did not commit. So choosing to perpetuate a system that often leads to unjust convictions has little negative impact on their self-interest. Whereas exposing the weaknesses in the system make their day-to-day lives more difficult. Even if this only came into play at a subconscious level, these pressures will bias the system toward injustice.

eric

Abby:

It was the Justice Department that withheld the review results and the people who made that decision face almost no risk of finding themselves on trial for crimes they did not commit.

I would certainly like to see the DOJ IG change how it reports results in the future. I.e., that they record which lawyers were one each reviewed case. And that they make the whole thing publicly available, and also send the results directly to prosecutors and defense attorneys alike. In that respect, I agree with you and with Balko’s response and outrage.

But (and you knew there was a but…) two things to consider:

1. The authors of government documents don’t generally control their distribution. Political bosses do. Sometimes, the authors aren’t even aware of what that distribution will be. The task force may not have even been aware that the report was only sent to prosecutors. If they were, they might not have been able to legally do anything about it. They could leak it, sure. But when you work for the government, they own your work product and they do with it what they wish. Just like if you code for Microsoft, you don’t own that code, Microsoft does. The coder doesn’t get to decide what Microsoft does with the code. In the government case you can argue that we the taxpayers should get to see it. But that is a different argument from whether the paid analyst gets to distribute it.

2. I suspect that distribution to prosecutors only was more incompetence than malice. Sending an email blast to all the relevant DA offices would have been easy for DOJ to do; the DAs are ‘in the .gov address book,’ so to speak. The IG’s office didn’t need to figure out which lawyers were on each case as either prosecutor or defense – they just send it to the DAs and tell them to figure it out. Sending it out directly to each individual lawyer involved in the case would have taken a lot more resources. I believe that the original story stated that in something like 100 of the 250 cases, the defendant couldn’t even be identified because of poor record-keeping. So doing what Balko (and you, and I) would’ve liked would not have even been possible in those cases.

Yes, if prosecutors aren’t going to do their legally required job and distribute it correctly, maybe we need to take that job away from them and give it to the IG. But let’s put the blame for that where it belongs – on the DAs and prosecutors who didn’t send it to the defense attorneys, not the IG.

I think you’re underestimating the power of self-delusion. The vast majority of the people I know in law enforcement, prosecution, etc are generally good people who genuinely believe they’re fighting the good fight. Unfortunately, for many reasons, police work tends to breed a great deal of cynicism. So it’s very easy to tell yourself that the accused are nearly always guilty, to value your own judgement over that of the jury, and to minimalize “technicalities” like improper lab work.

Note: I’m not making those arguments myself, nor am I defending them. But the problem is more complicated than just “self-interest.” I know you’re a fan of “Mistakes Were Made (But Not By Me)” – that describes the situation far better.

juice

raym,

That’s good news, but it brings up a slight peeve I have. Why can’t people just use the word justice on its own anymore? They always have to put some modifier on it.